Sixth Circuit limits access to federal mug shots

Federal authorities can withhold mug shots from release due to privacy concerns, the United States Court of Appeals for the Sixth Circuit ruled Thursday.

The court, sitting en banc, overturned its 1996 decision, which held that there was no privacy interest to justify exempting federal mug shots from the Freedom of Information Act. The new ruling will not necessarily keep all mug shots from being released, but it will require a case-by-case consideration of whether the public interest in disclosure outweighs privacy interests.

The majority argued that the digital age has made privacy concerns even more pressing.

“Today, an idle internet search reveals the same booking photo that once would have required a trip to the local library’s microfiche collection,” Cook wrote.

The case began in 2013 when the Detroit Free Press sued for access to mug shots of four police officers charged with bribery and drug conspiracy. The Detroit Free Press was also the plaintiff in the 1996 case, which for years allowed people within the Sixth Circuit’s jurisdiction access to federal mug shots.

But in 2012, the U.S. Marshals Service stopped releasing mug shots to people in the Sixth Circuit states of Ohio, Michigan, Kentucky and Tennessee. The change came shortly after rulings from two other federal appeals courts, which held that mug shots could be withheld due to privacy interests.

The Detroit Free Press case now goes back to a lower court, which will decide whether the photos of the four officers can be released. But regardless of the lower court’s decision, the Sixth Circuit ruling will now require the consideration of privacy interests when deciding whether to release a photo.

John Tran, an attorney at the Electronic Privacy Information Center, praised the "very strong privacy language" in the ruling.

"They do make a point to recognize that we are in a digital age — this is an online world, and booking photos can persist in perpetuity online," he said. "People's reputations can really be tarnished in a way that we didn't see 20 years ago."

But Judge Danny Boggs, writing for the dissent, argued that the decision “undermines FOIA’s goal of disclosure.”

“An individual who has already been indicted, and who has already appeared in open court, has no cognizable privacy interest in his booking photograph because neither he nor society expects that it will be hidden from public view,” Boggs wrote. “Even if an indicted individual has a privacy interest in his booking photograph, whatever invasion of privacy disclosure occasions is not ‘unwarranted’ in light of the weighty public interests that disclosure serves.”

Boggs wrote that mug shots “play an important role in educating the public about its government, just as open courts and open hearings do.”

He noted that mug shots can inform the public about cases of mistaken identity or abuse by law enforcement.

The majority opinion pointed out that people depicted in mug shots can waive their privacy interests if they think that releasing the photo could be beneficial. But the dissent countered that people may not have enough awareness of the FOIA process to do this.

“Moreover, the release of one individual booking photograph could never reveal the structural disparities in prosecutorial discretion that the regular release of many could,” Boggs wrote, noting that the widespread release of mug shots could show whether people of certain demographics were disproportionately charged.

Herschel Fink, an attorney for the Detroit Free Press, said in an interview that mug shots can also help the public identify criminals.

“A person may recognize a criminal’s face and know something about other crimes they may have committed,” he said.

The Reporters Committee filed an amicus brief in the case on behalf of a group of 37 media organizations, supporting the Detroit Free Press’ position. The brief argued that a mug shot “enhances journalists’ ability to tell the public about what the government is doing when it comes to law enforcement.”

The judges in the case also grappled with the issue of mug shot collection websites, which post mug shots online and sometimes charge fees to take them down.

“Potential employers and other acquaintances may easily access booking photos on these websites, hampering the depicted individual’s professional and personal prospects,” Cook wrote for the majority. Boggs argued that there were better solutions for dealing with these websites, giving as an example a Georgia law that requires the sites to take down mug shots of people who have been acquitted.

Fink said the Detroit Free Press is considering the possibility of seeking further review by the Supreme Court.